U.S. Legal Dilemma Exposed by Somali Terror Case: Noah Feldman

July 11 (Bloomberg) -- What do you do with a captured
terrorist? Throw him in the brig. That’s what was done with
Ahmed Abdulkadir Warsame, the Somali who in April was plucked
from a fishing boat off the East African coast between Yemen and
Somalia.

Once you’ve got him, though, the legal troubles begin.
Because the U.S. Supreme Court rejected the Bush
administration’s vague plan of indefinitely detaining “enemy
combatants” in Guantanamo without any hearing, the U.S.
government was left with three lawful choices for what to do
with Warsame:

It could have determined at a simple military hearing that
he was part of al-Qaeda, with which the U.S. is at war, and
detained him as a prisoner of war. It could have charged him
with war crimes before a military tribunal. Or it could have
filed terrorism charges against him in a civilian court -- which
is what the Justice Department did to Warsame last week.

In bringing criminal charges against Warsame in New York
City, the Justice Department no doubt meant to avoid adding
another prisoner to Guantanamo, which President Barack Obama
would like to close. But even this decision poses serious
problems for the Obama administration -- and for the rule of
law.

For two months after his capture, Warsame was questioned by
intelligence officials aboard the assault ship USS Boxer. Then
he had a four-day respite, during which the International Red
Cross was allowed to visit him -- a right guaranteed to POWs.

Once the Red Cross was gone, Warsame was, for the first
time, read his Miranda rights. And at this point Federal Bureau
of Investigation personnel took over the interrogation.
Surprise, surprise: He waived his right to keep silent or speak
to a lawyer.

Constitutional Rights

This novel procedure means a court will probably have to
decide whether Warsame’s statements to law enforcement may be
used against him in court, or whether the setting and context of
his confession make it involuntary. The administration says it
gave Warsame four days off after his interrogation by
intelligence officials in order to differentiate the questioning
in which he lacked constitutional rights from the one in which
he was entitled to them.

But after a person has been interrogated Guantanamo-style
for two months, how could he be expected to believe that he
really had the right to remain silent or to a lawyer? Deception
is a standard part of interrogation by military or intelligence
officers. Warsame would have had every reason to doubt that he
really was being allowed any rights -- or that the change in his
interrogators was anything more than a trick.

Add to this the likelihood that law enforcement knew, at
least roughly, what Warsame had already told the intelligence
officials, and it’s clear that his statements should almost
certainly not be admissible in court.

Then there is the question of why Warsame isn’t being held
as a POW or charged with war crimes. We are at war with al-Qaeda, which Congress has said includes all those who
perpetrated or supported the Sept. 11 attacks. We are not,
however, at war with all terrorists everywhere -- including the
Somali rebel group Al Shabab. Membership in Al Shabab is
therefore not grounds for POW-style detention.

The administration acknowledges this. But it also says we
are at war with senior Al Shabab leaders “who adhere to al-Qaeda’s ideology” and might attack civilians outside Somalia.
Warsame allegedly met with Anwar al-Awlaki, the U.S.-born Yemeni
cleric who is part of al-Qaeda in the Arabian Peninsula. Warsame
also allegedly received arms training in Yemen.

Operative Or Not

Perhaps Warsame’s captors initially thought he was close
enough to al-Qaeda to be a lawful wartime target. The Department
of Justice now says Warsame was a conduit between Al Shabab and
al-Qaeda in the Arabian Peninsula. The fact that the Obama
administration didn’t choose to detain him as a POW, though,
suggests that officials may also have concluded, after
interrogation, that he wasn’t really an al-Qaeda operative. They
also seem to lack enough evidence of a war crime to try him for
that.

If Warsame was not an al-Qaeda member, the administration
had only one lawful option: to try him for conspiracy to
materially support terror. His alleged crimes, it seems, stem
from his membership in Al Shabab -- a radical Islamist rebel
gang that is waging an insurrection against Somalia’s
transitional government -- and his training in Yemen, allegedly
by al-Qaeda in the Arabian Peninsula.

Under international law, which applies in cases of war
crimes, mere membership in a terrorist group isn’t a crime, and
there is no crime of conspiracy. But U.S. law is different. If
the U.S. wants to make it a crime for a Somali to conspire to
support terrorism in Somalia, it can. If it can convince a New
York jury that the government is right to designate Al Shabab as
a terrorist group, it can convict Warsame of conspiracy to
support terrorism merely for belonging to it.

Warsame may well be a dangerous terrorist. But it also
seems possible that he just had the bad luck to be caught, then
to be found not to be at war with us, rendering him ineligible
for detention or a war crimes tribunal. As a POW he would in
theory be eligible for future release. But by releasing him the
U.S. would risk embarrassment were he to commit terrorist acts
in the future.

So Warsame will go on trial under the considerably looser
standards of conspiracy. There may be evidence against him other
than his statements. But that evidence may not be admissible in
court. His fate may well rest on whether his statements after he
was issued the Miranda warning are admitted as evidence.

If they are, he will probably be convicted, and then he
will spend the rest of his life in prison. That may be a victory
for the rule of law -- but somehow it doesn’t quite feel like
one.

(Noah Feldman, a Bloomberg View columnist, is a professor
of constitutional and international law at Harvard and the
author of five books, most recently “Scorpions: The Battles and
Triumphs of FDR’s Great Supreme Court Justices.” The opinions
expressed are his own.)